FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

June 5, 2013
Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 13-8017
(D.C. Nos. 2:11-CV-00259-ABJ and
1:09-CR-00030-ABJ-1)
(D. Wyo.)

WILLIAM J. BATTON,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HOLMES, and MATHESON, Circuit Judges.

Petitioner William J. Batton, a federal prisoner appearing pro se,1 seeks a

certificate of appealability (COA) to challenge the district courts denial of his 28
U.S.C. 2255 motion to vacate, set aside, or correct his sentence. See 28 U.S.C.
2253(c)(1)(B) (requiring a COA to appeal an order denying a 2255 motion). He also
seeks leave to proceed in forma pauperis. We deny both requests and dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1

Because Mr. Batton is proceeding pro se, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) ([W]e must construe [a pro se litigants] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.).

I. BACKGROUND
Mr. Batton was convicted by a jury in the district court of a single count of
interstate transportation of a minor with intent to engage in criminal sexual activity, in
violation of 18 U.S.C. 2423(a), and sentenced to 360 months in prison. He appealed,
and this court affirmed his conviction. United States v. Batton, 602 F.3d 1191, 1202
(10th Cir. 2010). We summarized the underlying facts of this case in that opinion, id. at
1194-95, and do not repeat them here.
After his unsuccessful appeal, Mr. Batton filed a 28 U.S.C. 2255 motion to
vacate his sentence, raising five grounds for relief. He argued that (1) his due process
rights were violated because his indictment was supported by unreliable evidence; (2) his
due process rights were violated by prosecutorial misconduct at trial; (3) he had
ineffective assistance of counsel at trial; (4) he had ineffective assistance of counsel on
appeal; and (5) the cumulative effect of the violations violated his right to a fair trial.
The district court ruled that Mr. Battons first two claims were procedurally barred
because he failed to raise them on direct review and that his other claims failed on the
merits. The court therefore denied his motion and refused to issue a COA. Mr. Batton
filed a motion for reconsideration under Fed. R. Civ. P. 59(e). The district court
determined that this motion was untimely, treated it as a Rule 60(b) motion, and denied it
as a second or successive habeas petition on January 4, 2013. Mr. Batton filed a notice of
appeal on February 4, 2013, appealing the district courts denial of his 2255 motion and
of his Rule 59(e) motion.

II. JURISDICTION
The district court failed to enter a separate order as required under Rule 58(a) for
its October 18, 2012 denial of Mr. Brattons 2255 motion. Under Rule 58(c), the
judgment was considered entered on March 17, 2013, 150 days from when the denial of
the 2255 motion was entered on the civil docket. Mr. Bratton has not asked this court
for second or successive authorization or for review of the district courts treatment of his
Rule 59(e) motion as a Rule 60(b) motion. He instead has requested a COA for review of
the district courts denial of his 2255 and Rule 59(e) motions, and he has done so in a
timely manner.2 We therefore have jurisdiction to consider Mr. Brattons request for a
COA under 28 U.S.C. 1291.
III. DISCUSSION
Mr. Batton requests that we grant a COA on his ineffective assistance of counsel
claims. He also filed a motion to expand COA to include any grounds from his original
2255 motion that we deem suitable for review.
A COA is a jurisdictional prerequisite for appeal from the district courts dismissal
of his 2255 motion. See 28 U.S.C. 2253(c)(1)(B); United States v. Gonzalez, 596
F.3d 1228, 1241 (10th Cir. 2010). To obtain a COA, Mr. Batton must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2); see
also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A prisoner makes a substantial

As explained above, under Rule 58(c), judgment denying Mr. Battons 2255
motion was considered entered on March 17, 2013. He filed his notice of appeal to seek
a COA on February 4, 2013. His notice is considered timely filed under our ripening
rule. See Shepherd v. Holder, 678 F.3d 1171, 1178 (10th Cir. 2012).
3

showing of the denial of a constitutional right by showing that reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further. Slack,
529 U.S. at 484 (quotations omitted).
A. Ineffective Assistance of Counsel
In his application for a COA, Mr. Batton argues, as he did at the district court, that
his counsels deficient performance at trial deprived him of his Sixth Amendment right to
effective counsel. To establish ineffective assistance of counsel, a petitioner must show
(1) constitutionally deficient performance that (2) resulted in prejudice by demonstrating
a reasonable probability that, but for counsels unprofessional errors, the result of the
case would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694
(1984). If the applicant is unable to show either deficient performance or sufficient
prejudice, the ineffective assistance claim necessarily fails. Hooks v. Workman, 606
F.3d 715, 724 (10th Cir. 2010).
To show sufficient prejudice, the applicant must establish that counsels errors
were so serious as to deprive him of a fair trial, a trial whose result is reliable. Id.
(quotations omitted). Establishing a reasonable probability of a different outcome
requires something less than a showing that counsels deficient conduct more likely than
not altered the outcome in the case. Instead, a reasonable probability is one sufficient to
undermine confidence in the outcome. Id. (quotations omitted). [M]ere speculation is
not sufficient to satisfy this burden. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir.

2011). Mr. Batton has not shown sufficient prejudice from his counsels alleged
ineffective assistance. His claim therefore fails.
Mr. Battons only contention in his COA application is that his counsel was
ineffective for failing to object during the prosecutors closing argument. He argues that
the prosecutor misstated the record by asserting that Mr. Batton dried the victim off after
a shower during a trip to South Dakota. Because the victim never testified that Mr. Batton
dried him off during the trip to South Dakota, Mr. Batton argues that the statement was
improper and his counsel was ineffective for failing to object to it. He asserts that he was
therefore entitled to relief under 28 U.S.C. 2255 because he demonstrated a valid claim
of the denial of a constitutional right. Slack, 529 U.S. at 484.
We agree with the district court that Mr. Battons counsels failure to object during
closing argument does not establish prejudice. A prosecutors improper statement to the
jury is harmless unless there is reason to believe that it influenced the jurys verdict.
United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996) (quotations omitted). We must
consider the trial as a whole, including the curative acts of the district court, the extent
of the misconduct, and the role of the misconduct within the case when evaluating the
harmfulness of misconduct. Id. (quotations omitted).
Although the prosecutor misstated the facts on this one occasion, there was
abundant evidence in the record, including testimony from the victim, about other
occasions when Mr. Batton had dried him off inappropriately after showers. In the
context of the entire trial, Mr. Batton did not provide reason to conclude the prosecutors
misstatement constituted misconduct or that it influenced the jurys verdict. See id. Mr.
5

Battons counsels failure to object cannot therefore constitute ineffective assistance that
is sufficiently prejudicial under Strickland and Hooks. Hooks, 606 F.3d at 724 (citing
Strickland, 466 U.S. at 700).
Our review of the record shows that defense counsels failure to object to the
prosecutors misstatement of the record was not prejudicial. We conclude that reasonable
jurists could not debate the correctness of the district courts decision on Mr. Battons
ineffective assistance of counsel claim. We therefore deny COA on this issue.
B. Motion To Expand COA
Mr. Batton also filed a motion to expand COA, asking us to, sua [s]ponte, include
for review any and all grounds from his initial 2255 motion that we determine are
appropriate for review. He provides no argument or support for including any other
grounds for review. We therefore determine that all other grounds are inadequately
briefed on appeal and deny his motion to expand his COA request. See United States v.
Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (It is well-settled that arguments
inadequately briefed in the opening brief are waived. (quotations omitted)).
IV. CONCLUSION
We reject Mr. Battons application for a COA and dismiss this matter. We also
deny his request to proceed in forma pauperis.
ENTERED FOR THE COURT

Scott M. Matheson, Jr.

Circuit Judge